Maryland
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0-24566-01
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36-4460265
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(State
or other jurisdiction
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(Commission
File No.)
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(IRS
Employer
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jurisdiction
of incorporation)
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Identification
Number)
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(Address of principal executive offices)
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(Zip
Code)
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(d)
Exhibits.
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MB FINANCIAL,
INC.
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Date:
12/07/09
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By:
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/s/ Jill E. York | |
Jill E. York | |||
Vice President and Chief Financial Officer | |||
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8.
Effect of Change in
Control
. A Change in Control shall not, by itself,
result in acceleration of vesting of the Shares, provided, however, that
in the case of a Change in Control or any other transaction where the
Company is not the continuing entity (a “Transaction”), unless this award
(whether vested or unvested) is, in accordance with the agreement to which
the Company is a party providing for the Transaction (the “Transaction
Agreement”), assumed by the continuing entity or such entity’s ultimate
parent entity or cancelled in exchange for consideration payable to the
Grantee as specified in the Transaction Agreement, the Grantee (or
Grantee’s permitted transferee under Section 2 of this Agreement) shall
upon consummation of such Transaction be entitled to receive a cash
payment for each Share subject to this Agreement (whether vested or
unvested) from the continuing entity or such entity’s ultimate parent
entity equal to the Fair Market Value of a Share on the day prior to the
effective date of the Transaction; provided, further, that any such
payment shall comply with the TARP
Addendum.
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MB
FINANCIAL, INC.
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Signature
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ACCEPTED:
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Name
of Grantee:
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(Street
Name)
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(City,
State and Zip Code)
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Name
of Grantee:
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Dated:
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In
the presence of:
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1. Purpose; Compliance with TARP Requirements : |
The
purpose of this TARP Addendum to Restricted Stock Agreement (“TARP
Addendum”) is to incorporate into the terms of the Restricted Stock
Agreement (“Agreement”), to which this Addendum is attached and hereby
incorporated therein, provisions necessary to ensure compliance by the
Company and Grantee with the applicable requirements of Section 111 of the
Emergency Economic Stabilization Act of 2008 (“EESA”), as amended by the
American Recovery and Reinvestment Act of 2009 (the “ARRA”), as such
requirements are implemented by rules, regulations or other guidance
issued by the U.S. Department of Treasury from time to time, including,
but not limited to, the Interim Final Rule published June 15, 2009 (the
“IFR”) (the provisions of EESA, as amended by ARRA, as implemented by the
IFR, together with such amendments or modifications thereto and any other
rules, regulations or guidance relating thereto as may be published from
time to time are referred to herein, collectively, as the “TARP
Requirements”). To the extent not otherwise defined in the
Agreement or this TARP Addendum, capitalized terms shall have the meaning
ascribed to such term in the IFR. References to “Q-xx” in this
TARP Addendum are references to the corresponding question and answer
section in the IFR as may be amended.
In
the event all or any portion of the provisions of the Agreement is found
to be in conflict with any applicable TARP Requirements, then in such
event this award and the provisions of the Agreement shall be subject to
and automatically modified by this TARP Addendum to reflect such TARP
Requirements and this award and the Agreement shall be interpreted and
administered accordingly.
As
a condition of receiving this award of Shares of Restricted Stock, Grantee
acknowledges and agrees that (A) this award is and shall remain
subject to any applicable TARP Requirements, (B) this award is
subject to modification in order to comply with applicable TARP
Requirements, and (C) Grantee agrees to immediately repay any amounts
that may have been received by Grantee under this award that are later
determined to be in conflict with any applicable TARP
Requirements.
In
furtherance of and without limiting the foregoing, the Shares of
Restricted Stock awarded under the Agreement shall be subject to the
provisions set forth below in this TARP Addendum.
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2. Applicability : |
This
TARP Addendum and the TARP Requirements are only applicable to this award
if (A) Grantee is or becomes a Most Highly Compensated Employee of the
Company whose compensation is subject to the limitations on paying or
accruing any bonus, retention award and incentive compensation, described
in Section 111(3)(D) of EESA, as amended by ARRA, and Q-1 (Sec. 30.1) and
Q-10 (Sec. 30.10), prior to the date the Shares of Restricted Stock become
vested and transferable under the terms of the Agreement (such limitations
the “Bonus Limitations”), (B) Grantee is a Senior Executive Officer
or a Most Highly Compensated Employee of the Company with respect to whom
the Company is prohibited from making any golden parachute payment
described in Section 111(3)(C) of EESA, as amended by ARRA, and Q-1 and
Q-9 (Sec. 30.9) (such prohibition the “Golden Parachute Prohibition”), or
(C) TARP Requirements otherwise apply to this award to
Grantee.
To
the extent the TARP Requirements are not and do not become applicable to
Grantee for the reasons described above, then this TARP Addendum and the
TARP Requirements shall not apply to this award and Grantee’s rights to
the Shares shall be governed solely by the terms of the Agreement without
regard to this TARP Addendum.
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3. Long-Term Restricted Stock Award; Effect on Transferability : |
To
the extent the granting of this award or Grantee’s rights to the accrual
or payment (within the meaning of the TARP Requirements) of all or any
portion of the Shares covered by this award are subject to the Bonus
Limitations, this award shall be an award of Long-Term Restricted Stock
described in Q-1 intended to satisfy the TARP Requirements.
To
the extent required to comply with the TARP Requirements, the Shares of
Restricted Stock covered by this award shall, to the extent applicable,
(A) be subject to reduction, as more particularly
described below, to such number of Shares as is necessary so
that the value of the Shares of Restricted Stock granted to Grantee
hereunder does not exceed the limitations set forth in Q-10(e), (B) not
become vested to the extent such vesting is not permitted by the TARP
Requirements, (C) be subject to a Restricted Period (as defined under the
Agreement) of not less than two years (except for death, disability or a
change in control event (under Treas. Reg. Section 1.409A-3(i)(5)(i))(j)
and (D) to the extent otherwise vested, not become transferable earlier
than permitted under the schedule set forth in Q-1 (under the definition
of Long-Term Restricted Stock) pertaining to redemption by the Company of
all or a certain portions of the preferred stock issued to the U.S.
Treasury under EESA (or for certain merger or acquisition
transactions).
The
reduction described in clause (A) above shall be equal to the excess, if
any, by which the aggregate value of the Shares (determined as of the date
of grant) exceeds one-third of Grantee’s total annual compensation for the
fiscal year of the grant. If such excess occurs, then, except as provided
below, without any further action by the Company or Grantee, the number of
Shares of Restricted Stock covered by this award shall be reduced by the
number of Shares (rounded up to the nearest whole Share) determined by
multiplying the number of Shares covered by the ratio of the amount by
which such aggregate value exceeded one-third of Grantee’s total annual
compensation to the aggregate value of the Shares as of the date of
grant. Such reduction shall be effective and such excess Shares
shall be cancelled as of December 31 of the fiscal year of the date of
grant. The foregoing determinations shall be made in accordance
with the provisions of Q-10(e). In the event Grantee received
other grants of restricted stock during the year, then the determinations
described above shall be made on a cumulative basis and the reduction, if
any, shall be applied pro rata across all such awards.
The
reduction described above shall only occur if Grantee was subject to the
Bonus Limitations on the date of grant.
In
the event Grantee is not subject to the Bonus Limitations on the date of
grant, but becomes subject to the Bonus Limitations prior to becoming
vested in the Shares pursuant to the terms of the Agreement, then (i) that
portion of this award, if any, that would have been reduced if Grantee had
been subject to the Bonus Limitations on the date of grant shall not be
considered a Long-Term Restricted Stock award and (ii) the remaining
portion of this award shall continue to be treated as a Long-Term
Restricted Stock award hereunder respecting the remaining portion of the
Restricted Period on and following the date Grantee becomes subject to the
Bonus Limitations.
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4. Effect of TARP Requirements on Vesting : |
The
Shares shall vest in accordance with the provisions of the Agreement;
provided, however, that in the event Grantee is subject to the Golden
Parachute Prohibitions at the time of Grantee’s termination of employment
or a change in control (as provided under Q-1 and Q-9), then provisions of
the Agreement relating to the vesting of the Shares in such circumstances
shall apply only to the extent permitted by the TARP
Requirements.
In
the event Grantee was not subject to the Bonus Limitations on the date of
grant of the award but becomes subject to the Bonus Limitations prior to
becoming vested in the Shares pursuant to the terms of the Agreement, then
the vesting of that portion (if any) of the Shares that is not a Long-Term
Restricted Stock award shall be limited to the extent necessary to comply
with the Bonus Limitations as described in Q-10 and the above provisions
of this TARP Addendum.
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5. Tax Treatment : |
Grantee
understands and acknowledges that the Shares covered by the award may
become taxable to Grantee prior to the date transfer of such Shares is
permitted under the TARP Requirements. In such event and as permitted by
TARP Requirements, Shares having a fair market value equal to the minimum
required statutory tax withholding shall be withheld from the award in
satisfaction of such tax withholding. Grantee acknowledges that such
withholding shall not be permitted if Grantee is subject to the Bonus
Limitations on the date of grant and Grantee makes a Section 83(b)
election to be taxed on the value of the Shares on that date.
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